Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1887-06-24
THE CoTTLg HABEAs CORPUS.
An Interesting Decision Rendered By
Judge Armstrong Yesterday.

ouubO AihstrouS febterudys
In the Superior Court of the County OF
Sacramento, in the case of ex parte James
Cottle, on habeas corpus. Judge Armstrong
yesterday rendered the following opinion
The Supreme Court issued writ of habeas
corpus to the Sheriff of Colusa county, who,
In obedience thereto brought the petitioner
before me. He was in the Recorders
| Court, in the town of Willows, convicted
before jury, under Section 315 of the
Penal Code, of the crime of keeping a
house of ill-fame, which is by that section
declared to be a misdemeanor, and the
Court sentenced him to imprisonment for
ninety days in the county Jail of Colusa
county, and to pay fine of $500, and that
in default of paying the fine that he be
imprisoned till the fine is paid according to
law. AS that section is silent as to the
punishment, Section 10 of the Penal Code
defines the punishment to be: 1) Impris-
onment in the county Jail not to exceed six
months; ~ to fine the offender not to exceed
$500; (3) or TO both fine and imprison-
ment. When the offender pleads guilty,
or is convicted by Court or jury, the Court
must render judgment thereon of fine or
imprisonment, or both, as the case may
be penal Code, Sec. 1445); and "a judg-
ment that the defendant pay fine may
also direct that he be imprisoned until Its
fine be satisfied, in proportion to one days
imprisonment for every dollar of fine"
Penal Code, Sec. 1446.)
1t is claimed by the learned counsel for
the petitioner that as the judgment directs
that the petitioner be imprisoned in de-
fault of paying the fine, until the fine be
paid according to law, and not that he be
" imprisoned until the fine be satisfied in
the proportion of one days imprisonment
for every dollar of the fine" such part of
the judgment is void. and being void in
part it is void in toto. If it be conceded
that any part of the judgment is void, as it
is an entirety it is void in toto. Upon this
question, however, there is some diversity
of opinion, but it arises more from doubt
as to what judgments under the particular
circumstances are entireties than as to the
invalidity of such judgments when it is
ascertained that they are void in part. The
rnle that when judgment is an entirety
and is void in part it is void in toto is well
settled. FREEMAN on Judgment, sd Ed,
625; ex parte Bernert, 62 Cal, 524 ex
parte Kelly, 65 Cal, 154; ex parte Baldwin,
so Cal, 433; Richards VS.. Walton, II John,
434; Low VS.. Mumford, IA John, 423;
Voorhis VS.. Gamble, 6 Mo. App. L; Xitch-
| ms vs. Hutchens, A Geo, $40; Sbuford VS..
1 Abb. Z. S., 302 Holbrook VS.. Murray .
Wend. 1911 And a judgment upon con-
| viction of a person for misdemean-
or is an entirety. This is apparent
| from a consideration of the Code. If
| a fine be imposed it is a single and entire
| sentence; so if Imprisonment for specific
| time it is a single and entire sentence
and so, if fine and Imprisonment be the
sentence that too is an entire judgment.
| The Court, after conviction, decides which
sentence shall be pronounced against the
offender according to the degree of moral
| turpitude involved in the commission of
| the offense. The sentence that the offender
| be fined and imprisoned is as much an en-
| tire sentence as a sentence of Imprisonment
alone. Such a sentence is the sentence OF
| the law, The judgment where fine is
imposed may contain a direction that the
offender be imprisoned until the fine is
satisfied. And this, when contained in
| judgment, is as much a part of the judy
ment as the fine itself, and if this part is
void the whole is void.
In ex parte Kelly (65 Cal, 1867 the Court
| in bank said Now the judgment is a
unit, and if one portion of it is without the
| jurisdiction of the Justice, the judgment is
void. We see no authority in this Court
on this proceeding to hold a portion of a
| judgment surplusage, because not author
| lied by law to exscind such portion from
| the judgment and order what remains to
be carried into execution. The judgment
| must be passed on as whole, and if
any material portion of it is in
excess of the jurisdiction of the Court
| the judgment is void" 1t is not
| necessary to consider this proposition
| further; but is any part of the judgment
under consideration void? l think not.
| At most it is only erroneous and voidable.
1t does not exceed the jurisdiction Of the
| Recorders Court. 1t provides that the petit
toner be imprisoned until the fine is paid
according to law. The most serious criti-
cism to which this is liable, is that it is
uncertain but that is certain in both civil
and criminal proceedings which by refer
ence to the law can or is made certain.
This payment is as certain as if it had pro
vided that the petitioner be imprisoned
until the fine should be paid according to
Sections 1446 and 1456 of the Penal Code,
without incorporating them therein, be-
| cause every one is presumed to know the
law, officers having the custody of prison
ers, not excepted. Section I446 prescribes
| the rate per day the offender must serve in
| satisfaction of the fine, and Section 1456
prescribes the duration of the imprison-
ment, from which it follows that judg-
meBt of Imprisonment until the fine is
paid or satisfied according to law is made
certain, and that the part of Section 1446
| empowering the Court to prescribe the rate
at which the offender must serve in prison
in payment or satisfaction of the fine is
| only directory. There could be no i'm
prisonment for the collection of fine
unless the judgment so direct is the plain
meaning OF Section 1446, and this is
cardinal principle of law, applicable alike
| to civil as well as criminal proceed
ings Davis VS.. Robinson, 10 Cal.
| AID, and when imprisonment is directed
| by judgment for the collection of a debt
or fine, its duration in both civil and criml-
nal cases is regulated by the statute The
principle that statute which authorizes
the Court to specify the duration of the i'm
prisonment is only directory, is well
stated in Mr.. Cburch's learned work on
Habeas Corpus. Section 1853, where lie says:
Where statute limits the period Of i'm
prisonments in any given case, the judg-
ment of Justice of the Peace which fails
to direct the time the defendant shall be
imprisoned, when he is committed to
prison until payment of fine imposed, is
not void This provision is simply direc-
tory and mandatory. That,portion of Sec
| ton 1446, |hich provides that the iudg-
ment may direct that the offender NAV be
imprisoned until the fine is paid or salts
fed, is mandatory, as without il, as we have
| seen, there could be no imprisonment as a
| means OF enforcing the collectlon OF fine:
but that portion of that section, which pro-
vides that the judgment may direct the
I offender to be imprisoned on the PROPOSE
ton of one days Imprisonment for every
dollar Of the fine, is only directory" The
law fixes the duration of the imprison-
ment and time of discharge. (The People VS..
Markham, Z Cal. Dos; Jackson VS.. Bovd,
So Iowa, 536; S. C. 5, Northwestern Rep,
z66; ex parte Chin Yam, GO Cal, 7S.) 1t
| therefore follows that the judgment is
valid as an entirety and can be imposed by
imprisonment. After serving out the term
| for which be is sentenced, as part of the
punishment. and serving out his fine at
the rate of one dollar per day for every
dollar of the fine, he will be entitled to
his discharge, or sooner if he pays the
whole fine, or if he has served out a part
| of it, then by paying the balance of it I'M
paid or satisfied. 1t is claimed by the pc
titioner's counsel that the case of ex parte
kune ON habeas corpus, referred to me by
( the Supreme Court in 1884 in which held
| the judgment void, was like this case. l
| have not the judgment in the case before
me, but my recollection is that the iudg-
ment in that case was that the petitioner
be fined 500, and in default of paying the
fine that he be imprisoned two hundred
Il Il L